Tuesday, August 8, 2017

US Supreme Court to Decide Karsjens v. Piper: Part 2 of 2

Note to Readers:
The US Supreme Court has been asked to review Karsjens v. Piper, the
federal lawsuit originating at the Minnesota Sex Offender Program. The
Court’s decision to accept or reject the appeal (either way) will reshape
sexual offender civil commitment in the US. Since June, four amicus
briefs were filed to try to persuade justices to accept the case.
Summaries herein are largely excerpts, with links to the entire briefs.
For a review of the briefs, what’s at stake, and why SAJRT Blogger, Jon Brandt
believes the Supreme Court will accept the appeal, this blog has been split
into two parts. Part
1 was published last week. This is Part 2. – Kieran

ATSA has filed amicus briefs in many important
court cases, and some have been cited by the Supreme Court (SCOTUS). ATSA
members are likely to recognize the mission-driven arguments crafted mostly by
President Mike Miner and Executive Director, Maia Christopher.
“Granting review here is necessary to take account of important advances in the
empirical study of (1) rates of recidivism among sexual offenders, (2)
effective assessment, treatment, and management of sexual offenders, and (3)
factors that influence the effectiveness of treatment interventions. It
is a central tenet of mental health care that psychiatric treatment of
individuals facing involuntary hospitalization must be provided in the least
restrictive environment in which such individuals can safely and effectively be
provided services.”

“As this Court has recognized, the extent to
which a state policy furthers a legislative objective (under any standard of
review) is an empirical question. This Court’s past decisions examining sexual
offender legislation have, unfortunately, relied on sources that derived their
information from public discourse – not from the empirical literature.
Unfortunately, discourse regarding sex offender management and treatment has
often been dominated by fear and misinformation and not by accumulating
empirical evidence. Careful and impartial review of the empirical
evidence in constitutional decision-making is essential in discharging this
Court’s solemn duty to review legislation imposing special disabilities upon
disfavored groups, and crucial in standing guard against the kind of ‘class or
caste’ treatment that the Fourteenth Amendment was designed to abolish.”

The Fair Punishment Project (FPP) is a joint
project of the Charles Hamilton Houston Institute for Race and Justice and the
Criminal Justice Institute, both at Harvard Law School. The FPP brief was
joined by four criminology scholars. “The right to be free from
confinement is ‘of the very essence of a scheme of ordered liberty.’ It forms
the basis of other rights deemed fundamental in this country… and it prevents
this nation from devolving into tyranny. The government must tread lightly when
it intrudes on that freedom, enacting safeguards to prevent it from
overreaching. When republican institutions pass laws in response to moral
panics and popular passions, with little thought, deliberation, and scrutiny,
the rights of the most vulnerable and unpopular suffer. When ‘prejudice’
against unpopular groups curtails the operation of those political processes
ordinarily to be relied upon to protect minorities, more searching judicial
inquiry is required.”

“Moral panics have recurred in the history of
our democratic republic, and they have led to some of the greatest
infringements on fundamental rights and enormous national embarrassments. Most
famously, just weeks after Pearl Harbor, public opinion demanded the removal of
all Japanese Americans from the west coast; Japanese internment followed. Fear
of Soviet aggression lead to McCarthyism and the Red Scare. Fear over same-sex
marriage led to the passage of thirteen referenda barring same-sex marriage.
Courts have both the authority and the duty to intervene in cases where popular
passions lead legislatures to infringe on the ‘fundamental rights and
liberties’ that are deeply rooted in this Nation’s history and
tradition. Those whom we would banish from society or from the
human community itself often speak in too faint a voice to be heard above
society’s demand for punishment. It is the particular role of courts to hear
these voices, for the Constitution declares that the majoritarian chorus may
not alone dictate the conditions of social life. This case cries out for
judicial intervention.”

Commentary

“There is broad consensus that the current
system of civil commitment of sex offenders in Minnesota captures too many
people and keeps many of them too long.” These are the words of the
Honorable Eric Magnuson, former Chief Justice of the Minnesota Supreme Court, in a 2013
report to the US District Court for Minnesota. If readers want to
understand why “no one has any realistic hope of ever getting out of this
‘civil’ detention,” read Federal Judge Donovan Frank’s compelling
2015 opinion, finding SOCC in Minnesota unconstitutional. If readers
want to understand why SOCC is more about public policy than public safety,
read the full 2017 amicus briefs.

Undoubtedly, there are
some dangerous individuals under SOCC, but with equal certainty, SOCC is
overreaching. SOCC is a slippery slope. On the front end, SOCC creates a tenuous relationship between
psychology and law. On the back end, it conflates past heinous acts with
future dangerousness. Two respected New York Law School professors,
Michael Perlin and Heather Ellis Cucolo, are signatories of the “Law
Professor’s Amicus Brief,” and recently published a thoroughly researched book
that takes aim at sexual offender policies in the US.

In Shaming the
Constitution: The Detrimental Results of Sexual Violent Predator Legislation,
(Temple
University Press, 2017), Professors Perlin and Cucolo write, “society’s
‘solutions’ to the issues before us are all wrong… not simply ineffective, but
counterproductive, failing to add to public safety while ruining lives.
Media hysteria exacerbates all of this and strangles any attempts at
legislatively remediating the situation. Forensic psychologists have
demonstrated – beyond doubt – that the actuarial instruments regularly used to
determine who is a ‘predator’ are fatally flawed. Our sexual offender
laws… shame and humiliate those who violate them. In doing so… they
ignore and mock the due process clause, the ex post facto clause, the double
jeopardy clause, and the cruel and unusual punishment clause… they truly shame
the constitution and stain the political and social fabric of our nation.”

The Appellate Court, in finding MSOP
constitutional, abdicated judicial oversight for ensuring balance between
public safety and civil rights. The Eighth Circuit
ruling not only approves status quo in Minnesota and other states, it
affirms false claims that “sex offenders” are an intrinsically dangerous
subclass of US citizens. If SCOTUS rejects the appeal, the Appellate
Court ruling becomes binding on federal courts in the Eighth Circuit, and “persuasive”
in other circuits. Consider some
conditions of SOCC, which currently exist in Minnesota, that could be extended
to other SVP states:

Detainees
can be confined indefinitely under the guise of treatment because there is
no constitutional right “to appropriate or effective or reasonable
treatment.”

There
is no right to the least restrictive level of confinement.

The
threshold out of SOCC can be higher than the threshold in.

Detainees
can be confined for years without evaluations to ensure criteria for
confinement.

There
is no affirmative duty for the state to release detainees who are no
longer dangerous.

The
burden of eligibility/application for reduction of custody can be placed
on detainees.

Executive
orders can broadly block discharges.

Violations
of civil rights are not unconstitutional unless such violations “shock the
conscience.”

In Minnesota and several other states, there
are many detainees who, by consensus among professionals, could be safely
released (conditionally or unconditionally) to the community, but they remain
imprisoned for reasons that are clearly political. Apparently, the Eighth
Circuit was not moved by the prospect of “political prisoners.” Hopefully,
the Supreme Court will see Karsjens differently.

Justice Anthony Kennedy wrote in Romer v. Evans(1996) that, “laws of the
kind now before us raise the inevitable inference that the disadvantage imposed
is born of animosity toward the class of persons affected [homosexuals].
If the constitutional conception of ‘equal protection of the laws’ means anything,
it must at the very least mean that a bare desire to harm a politically
unpopular group cannot constitute a legitimate governmental interest.” In
Kansas v. Hendricks
(1997), Justice Kennedy warned that SOCC, in concept or practice, could
unconstitutionally overreach. Twenty years later, perhaps Justice Kennedy
will be the voice that unites liberal and conservative justices to bring new
guidance to SOCC in the US.

Another indication that the Supreme Court might
grant certiorari (accept the appeal), and potentially reverse the Eighth
Circuit, is the unanimous June 2017 SCOTUS opinion in Packingham v. North Carolina.
Applying the proper
standard of legal review is at the core of Karsjens. Judge
Frank ruled that SOCC was subject to “strict scrutiny” and therefore SOCC laws
must be “narrowly tailored” to achieve their purpose. In reversing the
District Court, the Appellate Court said Judge Frank should have applied a
lower legal standard; that SOCC laws must bear only a “reasonable relationship”
to a legitimate government interest. However, in Packingham,
Justice Kennedy wrote that the North Carolina law broadly restricting “sex
offenders” from accessing the Internet was overreaching, and that such infringements
on civil liberties must be “narrowly tailored.” If justices apply the
same reasoning to liberty interests under SOCC, perhaps they will agree to
review Karsjens.

Judge Frank, plaintiffs’ attorneys, and the
amicus briefs state that the goal of Karsjens is not to strike down SOCC
broadly, but rather to acknowledge the constitutional infirmities of a system
that is overreaching, and restore the constitutional integrity that SCOTUS
established in previous SOCC rulings. The Eighth Circuit held that the 14th
Amendment’s right to due process applies only to “fundamental liberty
interests,” and that the Supreme Court “has never declared that persons who
pose a significant danger to themselves or others possess a fundamental liberty
interest in freedom from physical restraint.” Well, now SCOTUS has a
vehicle to fix that. Substantive due process and fundamental liberty
interests are bedrock in the history of civil rights – constitutional rights
that should be inalienable for all Americans.

A Post Script: On October 2, 2017, the
Supreme Court denied certiorari, without comment (as is customary), marking the
end of Karsjens v. Piper as a vehicle
to correct untenable conditions of SOCC in Minnesota. Another unfortunate consequence of the SCOTUS
decision is that other states with struggling SOCC programs would have benefitted from judicial guidance from the High Court. If there is any good news in the wake of
Karsjens, perhaps it’s two-fold: First,
that the SVP pipeline to SOCC in Minnesota has dried to a trickle, and other reforms
initiated by US District Judge Donovan Frank are underway at MSOP. And second, there is greater public and
professional awareness that SOCC, as an institution, strains the credibility needed
to balance public safety with therapeutic integrity and constitutional safeguards
for its involuntary clients.

Note: This updated version of the original blog
also corrected a statement regarding the binding authority of an Appeals Court
ruling. Appellate Court rulings become binding on federal
courts in their circuit, and are “persuasive” but not binding in other
circuits. – JB

Much appreciation
to the attorneys who provided guidance for this op-ed piece.

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Kieran McCartan, PhD

Chief Blogger

David Prescott, LICSW

Associate blogger

Alissa Ackerman, PhD

Co-Blogger

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The Association for the Treatment of Sexual Abusers (http://atsa.com/) is an international, multi-disciplinary organization dedicated to preventing sexual abuse. Through research, education, and shared learning ATSA promotes evidence based practice, public policy and community strategies that lead to the effective assessment, treatment and management of individuals who have sexually abused or are risk to abuse.

The views expressed on this blog are of the bloggers and are not necessarily those of the Association for the Treatment of Sexual Abusers, Sexual Abuse: A Journal of Research & Treatment, or Sage Journals.

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